This matter is before the Court on defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Jurisdiction is based on diversity. 28 U.S.C. § 1332. For the reasons set forth below, we grant defendants' motion for summary judgment.

BACKGROUND

On January 31, 1991, plaintiff, Sarah Herriott ("Herriott"), brought a six count complaint individually and as Special Administratrix of the estate of Brutus Herriott. This suit arises out of the death of her husband, Brutus Herriott, while he was working "around and upon" a piece of equipment known as a "Larry-Car." Defendants include Allied-Signal, Inc., Engineering Materials, Allied Chemical Corporation, and the Wilputte Coke Oven division of Allied Chemical & Dye Corporation (collectively "Allied").

The facts of this case are not complicated.
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Between 1953 and 1957, Interlake Steel (now ACME Steel) hired Allied to design, manufacture, and construct two batteries of coke ovens at Interlake Steel's facilities. Each battery is a row of fifty adjacent coke ovens. One row is directly behind the other. Also as part of this construction, Interlake purchased from Allied two pieces of ancillary equipment called coal-charging cars, also known as Larry-Cars.

A Larry-Car is a machine that receives coal from the plant's charging bins and carries it to a particular coke oven which is to be "charged." Allied assembled and constructed the Larry-Car on top of the batteries during the initial building of the batteries in the 1950's. The Larry-Car travels in a north and south direction along 490 feet of rail over the batteries. As such, the Larry-Car is assembled approximately twenty-five to thirty feet above the ground. Moreover, the machine weighs thirty tons and is twelve feet high, twenty feet long, and thirty-five feet wide. After obtaining coal from the charging bins, the Larry-Car travels on rails on top of the coke oven batteries. When over the designated oven to be charged, the Larry-Car operator drops the coal into the oven, and the coal is then cooked and processed. According to the unrebutted deposition testimony of Mr. Dick O'Hearn ("O'Hearn"), an assistant division manager at ACME Steel's coke plant, the Larry-Car is the only way to charge an oven with coal and therefore the only way at the plant to process coke.

Brutus Herriott was employed by ACME as a Larry-Car operator. On February 1, 1989, Mr. Herriott was killed while working around and upon the Larry-Car. Subsequently, on January 31, 1991, Sarah Herriott filed a six count complaint which was removed to this Court. Herriott contends that Allied's errors in its design and manufacturing of the Larry-Car rendered it unreasonably dangerous and defective and that this condition proximately caused Mr. Herriott's death.

In response to Herriott's complaint, Allied has filed this motion for summary judgment. Allied's sole argument is that the ten year statute of repose set forth in Illinois Revised Statute Ch. 110, section 13-214(b) bars Herriott's action. Herriott disagrees. We discuss both parties' arguments below. But first, we address the appropriate summary judgment standard.

When a properly supported motion for summary judgment has been made, the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. Like the movant, the nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; rather contentions must be supported by proper documentary evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Moreover, the opposing party is entitled to the benefit of all favorable inferences that can reasonably be drawn from the underlying facts but not every conceivable inference. De Valk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 329 (7th Cir. 1987). It is light of this standard that we address Allied's motion.

DISCUSSION

The sole issue we must address is whether section 13-214(b) of the Illinois Code of Civil Procedure applies to this dispute. If it does, summary judgement is proper. Because we conclude that Allied's design, manufacture, and construction of Inland Steel's Larry-Car constituted an "improvement to real property" within the meaning of section 13-214(b), we grant Allied's motion for summary judgment.

Section 13-214(b) is the statute of repose applicable to lawsuits brought against persons who have designed, planned, supervised, observed, or managed the construction of an improvement to real property.
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Specifically, it reads:

no action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act of omission.

an addition to real property amounting to more than a mere repair or replacement, and which substantially enhances the value of the property. . . . Improvements include buildings and substantial additions or changes to existing buildings.

The Seventh Circuit applied these rules in Hilliard. There, the plaintiff, Hilliard, worked in a cocoa-processing plant. In 1965, the owner of the processing plant hired the defendant, Lummus, to provide its engineering and technical services to modernize the processing plant. Among other recommendations, Lummus suggested that certain screw conveyors, which carried ground cocoa from a sterilizer to a pulverizing mill, be equipped with stainless steel components instead of their carbon steel components. Hilliard, 834 F.2d at 1353. In 1981, Hilliard's right arm was severed above the elbow after he opened the cover of a screw conveyor. Id. at 1353. Hilliard subsequently brought suit against Lummus for his injuries.

The Seventh Circuit affirmed the district court's entry of summary judgment for Lummus based on section 13-214(b). The Seventh Circuit specifically held that the screw conveyor constituted an improvement of real property within the meaning of section 13-214(b). Id. at 1354. In so holding, the court adopted the district court's reasoning, which provided as follows:

that the conveyor is more than a mere repair or replacement is beyond dispute. The uncontested deposition testimony established that the conveyor was installed in about 1950 along with the construction of the building and has remained there ever since. The conveyor was not a repair to or a replacement of anything that previously existed. Furthermore, we do not think that it can seriously be doubted that the conveyor substantially enhanced the value of the property. The plant is designed to produce processed cocoa, and the conveyor was built as an integral component of that process.

A federal district court in Adair v. Koppers Co., Inc., 541 F. Supp. 1120 (N.D. Ohio 1982), aff'd, 741 F.2d 111 (6th Cir. 1984), reached a similar result.
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In Adair, the defendant, Koppers, had been hired in 1923 to construct an industrial complex styled by-product coke plant. Adair, 541 F. Supp. at 1122. In constructing the processing plant, Koppers designed and installed a conveyor that transported coal from a rail system to certain by-product coke ovens. Id. at 1122-23. The plaintiff, Adair, was injured while working around the conveyor and sued Koppers for his injuries.

The court granted Kopper's motion for summary judgment, holding that the conveyor constituted an improvement to real property. Id. at 1130. In so holding, the court reasoned that the conveyor was "an integral component of an industrial system which is essential for the plant to serve the purpose for which it was designed: transportation of coal is essential to the operation of the By-Product Coke Plant." Id. at 1125. Therefore, the court concluded that Ohio's statute of repose barred Adair's action.

We also note that Illinois Appellate Court decisions after Hilliard have not retreated from the definition of "improvement to real property" as articulated in Calumet Country Club. Rather, these courts have expanded the definition. These courts have defined "improvement" as:

a valuable addition made to property . . . or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.

Cross, 557 N.E.2d at 913; see also St. Louis, 581 N.E.2d at 96; Billman v. Crown-Trygg Corp., 205 Ill. App. 3d 916, 563 N.E.2d 903, 906, 150 Ill. Dec. 776 (1st Dist. 1990). Thus, under this expanded definition, an improvement is not limited to that which "substantially enhances" the value of property. Rather, an improvement may also enhance the beauty or utility of that property or adapt the property to different or further purposes. St. Louis, 581 N.E.2d at 145.

For the foregoing reasons, defendants' motion for summary judgment is granted.

Charles P. Kocoras

United States District Judge

Dated: July 21, 1992

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